July 20, 2020 The Tax Lawyer

The Morass of the Anti-Injunction Act: A Review of the Cases and Major Issues

Vol. 73, No. 4 - Summer 2020

by Leslie Book and Marilyn Ames

Abstract

As Congress gives the Service more tasks to perform beyond its functions of assessing and collecting taxes, courts, practitioners, and academics are struggling to apply the Anti-Injunction Act (AIA) as the Service promulgates procedures in the course of fulfilling these new mandates. The AIA has its origins in the post-Civil War era when the federal government established new procedures ensuring the assessment and collection of taxes. It may seem odd that an over 150-year old provision is now fueling a growing number of contested and controversial disputes. Yet, the AIA has taken on renewed importance as courts consider challenges to tax regulations and guidance, fueled in part by the increasing importance of administrative law in issues of tax procedure and administration.

From a normative perspective, we sympathize with legislative proposals providing additional ways to challenge regulations and other Treasury Department and Service guidance. We believe that allowing an opportunity to bring good faith pre-enforcement challenges to regulations and guidance will enhance public confidence in the tax system and improve the quality of the rules in the first instance. Given congressional dysfunction and, what appears to us, a limited likelihood of any meaningful legislation addressing the issue (at least in the short term), courts, practitioners, and academics are left struggling with an increasingly complex and confused AIA jurisprudence. In this Article, we provide a discussion and an analysis of the case law in this area.

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